Beals v. Walker

• Decision Date: 01 November 1981
• Docket Number: Docket No. 65442
• Citation: 416 Mich. 469,331 N.W.2d 700
• Parties: Renold L. BEALS, Jr. and Joyce E. Beals, Plaintiffs, v. Richard J. WALKER, Individually, and d/b/a Kingston Farm Service, Defendant. ,
• Court: Michigan Supreme Court

Page 700

331 N.W.2d 700

Renold L. BEALS, Jr. and Joyce E. Beals, Plaintiffs, v. Richard J. WALKER, Individually, and d/b/a Kingston Farm Service, Defendant.

Docket No. 65442, Nov. Term, 1981.

Calendar No. 1.

416 Mich. 469, 331 N.W.2d 700

Supreme Court of Michigan.

Argued Nov. 9, 1981.

Decided Dec. 23, 1982.

Cicinelli, Mossner, Majoros & Alexander, P.C. by Eugene D. Mossner and William S. Pearson, Saginaw, for plaintiffs.

Isackson, Neering & Quinn, P.C. by Frank M. Quinn, Bay City, for defendant.

RYAN, Justice.

This is a slip and fall case which raises issues under the law of premises liability.

We are required to decide whether the plaintiff was entitled to the requested instruction on comparative negligence; whether the Funk ¹ doctrine should be expanded to cover the facts of this case; and whether the Court of Appeals erred in finding that the trial court should have granted the defendant's motion for a directed verdict. We answer the first and third questions in the affirmative, but answer the second question in the negative. Accordingly, the decision of the Court of Appeals is reversed and the case is remanded for a new trial under the principles of comparative negligence. ²

On January 18, 1974, plaintiff Renold L. Beals, Jr., fell from a roof of the Kingston Farm Service building in Kingston, Michigan, onto the railroad grade below and then forward onto the tracks, striking his left elbow and face against the railroad tracks. He suffered a cut lip, a broken tooth, and an injury to his right foot which was later diagnosed as a multiple fracture of the right heel bone. The plaintiff and his spouse, Joyce E. Beals, filed suit on February 19, 1975, against the defendant, Richard Walker, the owner and operator of Kingston Farm Service. Amended complaints were later filed, alleging medical malpractice by defendant Dr. John Williamson in the treatment of the plaintiff's injured foot.

The trial began on June 6, 1978. At the close of the plaintiff's proofs, defendant Walker filed a motion for a directed verdict of dismissal. The trial judge took the motion under advisement. At the close of the case, the court refused to give the plaintiff's requested charge on comparative negligence and instructed the jury that plaintiff's contributory negligence would bar recovery. Plaintiff objected to that instruction on the basis of Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974). A jury verdict of no cause of action was returned in favor of both defendants on June 17, 1978. The plaintiff's motion for a new trial was denied on October 6, 1978.

A timely claim of appeal as of right was filed in the Court of Appeals on October 26, 1978. Defendant Walker filed a cross-appeal, arguing that his motion for a directed verdict should have been granted. A majority of the Court of Appeals panel affirmed the judgment for defendant Walker on the basis of the issues raised in the cross-appeal, namely that certain safety regulations issued by the Michigan Department of Labor were not violated and therefore the motion for a directed verdict should have been granted. The judgment in favor of defendant Williamson was also affirmed. Beals v. Walker, 98 Mich.App. 214, 296 N.W.2d 828 (1980). Judge M.J. Kelly dissented only as to defendant Walker, finding sufficient evidence to allow the premises liability claim to go to a jury.

The plaintiff applied for leave to appeal against only defendant Walker. We granted leave to appeal. 411 Mich. 900 (1981).

The evidence adduced during the plaintiff's case in chief tended to show the following facts:

The plaintiff had been employed as a millwright for ten years prior to the accident.

The morning of January 18, 1974, was cold and misty, the type of day that required the use of windshield wipers when driving an automobile. Sometimes the sun would come out and then disappear again. The plaintiff and a fellow employee, John Wilson, arrived at the defendant's grain elevator in response to Walker's call for repair service. An elevator leg would not operate, and Walker suspected that the problem was a broken "reducer", a large gear located in the "headhouse" at the very top of the elevator.

The "man-lift" used to reach the top of the elevator was capable of carrying only one person; the lift could not be sent down in order to carry up a second person because it was counterbalanced for the weight of one person. Since the repair required the attention of both of the men, it was necessary that another means be found to enable both Beals and Wilson to reach the headhouse.

The plaintiff initially looked for an inside ladder adjacent to the lift. The plaintiff and John Wilson testified that every other grain elevator they had ever worked on had an inside ladder. The plaintiff's safety expert also testified that this was the only grain elevator he had ever seen without an inside ladder. The plaintiff's employer provided a list of grain elevators he had worked on, all having inside ladders. Finding no inside ladder, the plaintiff asked one of the defendant's employees how a second man could get to the headhouse. The employee said that a stationary outside ladder, which was permanently affixed to the outside of the elevator and extended from the roof of a lower building to the top of the elevator, could be used. ³ The employee informed the plaintiff that a portable ladder which was in the warehouse could be used to gain access to the roof of the lower building in order to reach the base of the outside ladder.

Exhibit No. 13

The plaintiff obtained the portable ladder from the warehouse and placed it against the side of the building in order to obtain access to the roof of the lower building. Mr. Beals climbed the ladder, and when he reached the top looked at the roof for snow and ice and felt it for ice and wetness. The roof was dry, so he climbed up on the east side of the sloped roof and walked toward the stationary ladder, which was located on the other side of the roof a few feet past the peak. Before stepping over the peak, the plaintiff looked at the surface of the roof on the west side of the peak and determined that it looked just like the east side. As Beals stepped over the peak, he slipped, fell, and started sliding down the roof. The west side of the roof was coated with a sheet of clear ice. He slid off the roof, sustaining serious injuries when he struck the ground. A second worker traveled the same route later that same day and successfully reached the headhouse without incident.

The plaintiff's safety expert testified that the route from the ground to the headhouse via the outside ladder was unsafe in several ways. Although the slope of the roof was not severe, about 18 degrees, it was hazardous for a person walking upon it when compared to a maximum recommended pitch of less than 12 degrees. The expert testified that, in his opinion, the safe access ramp and platform required by the applicable safety regulations could have been constructed at total materials and labor cost of less than $500.

I

The plaintiff's initial assignment of error concerns the trial court's instructions on contributory negligence as a total bar to recovery and the court's concomitant refusal to instruct under the doctrine of comparative negligence. This Court adopted the doctrine of comparative negligence in Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979).

The defendant does not contest the fact that the issue was properly preserved and that this case falls within the limited rule of retroactivity announced in Placek, p. 667, 275 N.W.2d 511, namely,

"any case presently pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal."

We are constrained to apply the rule of retroactivity adopted by a majority in Placek, despite the view of some of the Justices that prospective application of comparative negligence would have been preferable. Placek, p. 683, 275 N.W.2d 511 (opinion by Coleman, C.J., concurring in part and dissenting in part). If the plaintiff submitted evidence at trial sufficient to avoid the defendant's motion for a directed verdict, see part III, then the plaintiff is entitled to a new trial under the principles of comparative negligence.

II

The plaintiff also objected to the trial court's contributory negligence instructions on the ground that the defense of contributory negligence was unavailable under our decision in Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974). Despite the fact that this case does not involve a construction worker alleging negligence against the general contractor in the failure to provide adequate safety devices on the job, the plaintiff argued that the Funk decision could be extended to cover the facts of this case. While the Funk rationale could have been extended to completely abolish the defense of contributory negligence, ⁴ it is clear that the Funk doctrine was based in large part upon the special safety considerations in the construction trades ⁵ and the unique role of the general contractor as a supervisor of common work areas. ⁶ In Tulkku v. Mackworth Rees Division of Avis Industries, Inc., 406 Mich. 615, 281 N.W.2d 291 (1979), the Court assumed, without deciding, that Funk applied to the workplace in general. In addition, it is clear that the Tulkku decision is supportable without reference to Funk. ⁷

In any event, we deem it unnecessary to ascertain the precise contours of the Funk doctrine, since the Funk doctrine has been overruled in light of the adoption of comparative negligence. Hardy v. Monsanto Enviro-Chem Systems, Inc., 414 Mich. 29, 323 N.W.2d 270 (1982). The plaintiff's assertions on appeal that Funk survived the adoption of comparative negligence in Placek were decided adversely to the plaintiff in Hardy and need not be reconsidered. Even if we extended the Funk doctrine to the facts of this case, the defense of...